ILLINOIS POLLUTION CONTROL BOARD
April 12,
1973
ELGIN JAYCEES, an Illinois
Not-For-Profit
Corporation
#71—59
v.
TRI-COUNTY LANDFILL COMPANY,
an Illinois corporation,
et al
JOHN E.
JUERGENSMEYER, APPEARED ON BEHALF OF ELGIN JAYCEES
KENNETH F. MILES OF JORDAN
& MILES, APPEARED ON BEHALF OF VILLAGE
OF SOUTH ELGIN
JAMES
I.
RUBIN, ASSISTANT ATTORNEY GENERAL, APPEARED ON BEHALF OF
ENVIRONMENTAL PROTECTION AGENCY
EUGENE MURPHY OF MURPHY
& PEARSON, APPEARED ON BEHALF OF TRI-COUNTY
LANDFILL COMPANY
ROBERT F.
CASEY, APPEARED ON BEHALF OF ELGIN LANDFILL COMPANY
DENNIS
F. FRANCE OF
HOWARD,
HOWARD
& FRANCE, APPEARED ON. BEHALF
OF GARDEN CITY DISPOSAL COMPANY AND ARC DISPOSAL COMPANY
OPINION AND ORDER OF THE BOARD
(BY SAMUEL T. LAWTON,
JR.):
This proceeding involves assertions
of alleged land, air and
water pollution occurring with respect to properties
in the vicinity
of South Elgin, Illinois,
as will be more fully set forth below.
Be-
cause of the complexity
of
the case,
an initial review of the plead-
ings and a
description
of
all
parties
is
in order before consideration
of
the case on the merits.
The initial complaint was filed by the Elgin Jaycees,
an Illinois
Not-For-Profit corporation against Tn-County Landfill Company,
an
Illinois corporation, and Jack Termaat, its Manager, alleging that
the Respondents,
in the operation of a landfill located on Route 25
in
the
City
of
South
Elgin,
were
in
violation
of
Regulations
with
respect
to
“water,
soil, leaching and air pollution” on specified
dates
in
1970
and
1971.
The
essence
of
the
complaint
was
that
waste
material deposited at the dump site, drained through a
small
creek
which,
in turn, was tributary to the Fox River.
On May
5, 1971,
an amended complaint was filed, adding as parties
Respondent Garden City Disposal Company, Edward and Everett Vander
Molen, Arc Disposal Co.
(originally designated
“Art Disposal”),
Wayne Disposal Co. and Edward Evenhouse, individually and as Registered
Agent of Tn-County Landfill Company, asserting essentially the same
alleged violations
as in the original complaint and adding that
7
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483
because of the proximity of wells
furnishing South Elgin’s water
supply, the water supply was in danger of pollution.
A second
amended complaint was filed by the Elgin Jaycees on June
8,
1971,
adding an additional paragraph to the complaint,
as follows:
“4.
Statement of Manner and Extent to which Respon-
dents are Claimed To Be In Violation:
Respondents operate
a series of related
“sanitary1’ landfills covering several
hundred acres, and dump all manner of waste products, super-
ficially covering some of
the material with soil.
Septic
tank sludge pumpings have also been dumped on the property.
Waste material drains to a small creek which runs through the
property, which has become badly polluted and which flows
directly into the Fox River
a short distance away.
The
landfills are in close proximity to the shallow wells of the
Village of South Elgin Water Supply,
and said water supply
is in serious danger of pollution.
The Fox River,
the
aforesaid creek, the subsoil waters and the air are badly
polluted as a result of improper location and management
of
this operation.”
On July 7,
1971,
a motion to dismiss was filed by Garden City
Disposal Company and Arc Disposal Company, on the grounds that
neither company had any interest in the landfill operation which
was the subject of the complaint.
On July
15,
1971,
a petition for leave
to intervene as a party
complainant was filed by the Village of South Elgin, which interven-
tion was permitted by order of the Hearing Officer on July 22, 1971.
On September
6,
1971,
a petition for leave to intervene as a
party complainant was filed by the County of Kane which was granted
on September 17, and on September 14,
a petition for leave to inter-
vene as party complainants was filed by Edward and Shirley Ross,
Arthur H.
Ross,
George E. Schaffter, Edward and Sandra Plumley,
James A. Greenberg, Eugene Sirrmierman and William Collier.
On October
22,
1971,
the Environmental Protection Agency of
the State of Illinois filed a petition for leave to intervene as a
complainant,
together with its complaint as such intervenor.
The
complaint is directed against all of the Respondents heretofore
named by
the Elgin Jaycees in their complaints and alleged that the
Tn-County Landfill Company and the Vander Molens, doing business as
Elgin Landfill Company, each operate contiguous
landfill sites on
Route 25 in or near the municipality of South Elgin and that between
July
1,
1970 and the close of the record in the proceeding, Tn-
County Landfill Company and Elgin Landfill Company have discharged
contaminants into certain underground waters of the State,
so as to
cause, either alone or in combination with matter from other sources,
water pollution,
in violation of Section 12(a)
of the Environ-
mental Protection Act and have deposited contaminants on the
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7
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484
land in such a place and manner so as
to create
a water pollution
hazard,
in violation of Section 12(d)
of the Act.
The entry of
a cease and desist order and penalties
in the maximum statutory amount
are sought.
On November
9,
1971,
the Hearing Officer granted all of the
foregoing petitions with respect to intervention and granted the
Agency’s motion
to add Edward and Everett Vander Molen, d/b/a
Elgin Landfill Company,
as
a party respondent.
On December
6,
1971, an amended complaint was filed by the
Environmental Protection Agency against all of
the foregoing Respon-
dents alleging the discharge
of
contaminants into underground waters
of the State so as
to cause ground water pollution,
in violation
of Section 12(a)
of
the Act, and depositing contaminants upon the
land so as
to create a water pollution hazard in violation of
Section 12(d)
of the Act.
Again, while all of the foregoing Respon-
dents are named,
the violations are alleged only against Tn-County
Landfill Company and both Vander Molens, individually and d/b/a
Elgin Landfill Company.
On June 27,
1972,
a motion to dismiss was filed by Respondents,
Elgin Landfill Company, Tn-County Landfill Company, Arc Disposal
Company and Garden City Disposal Company, alleging the impropriety
of John E. Juergensmeyer to act as Attorney for various complainants
and intervenors herein because of alleged conflict of interest as
a consequence of Mr.
Juergensmeyer’s participation as a Hearing
Officer of the Pollution Control Board in other proceedings of the
Board.
The motion asks that all complaints filed by Mr. Juergens-
meyer be dismissed or, that in the alternative,
he be barred from
participating in the proceedings.
On June 30,
1972,
we entered
our Opinion and Order denying the motion.
The foregoing represents the principal pleadings filed by
the
parties.
Other motions were filed by the parties and orders entered
by the Hearing Officer, principally with respect to Interrogatonies,
inspections and pne-trial procedures, which are not alluded to.
To
the extent not heretofore disposed of, we ratify and confirm all
actions taken by the Hearing Officer.
We grant the motion of Arc Disposal Co. and Garden City Disposal
Co.
to dismiss as no violations have been demonstrated to have been
committed by them.
We find the record fails to support any allega-
tions
of
air
pollution
and
to
the
extent
such
allegations
are
pleaded
in any of the original complaints, we find Respondents not to have
been in violation of any regulation or statutory provision with
respect thereto.
We find
that Edward Vander Molen and Everett
Vander Molen, d/b/a Elgin Landfill Company, and Tn-County Landfill
Company
to have caused water pollution,
in violation of Section 12(a)
of the Act and to have created
a water pollution hazard,
in violation
of Section 12(d)
of the Act.
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7
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485
While the evidence demonstrates
the probability that the
Rules and Regulations with respect to Refuse Disposal Sites and
Facilities have been violated on an episodal basis, we do not be-
lieve in this respect that the evidence is sufficiently impressive
to establish violations with the exception of Rule 402(a)
requiring
that reasonable assurance be taken so that leachate from the landfill
does not contaminate the ground waters or streams
in the area.
We
find Respondents,
the Vander Molens,
d/b/a Elgin Landfill Company
and Tn-County Landfill Company have violated this provision.
However,
in view of the failure to specify the precise sections for which viola-
tions of the Rules are asserted and the failure to make adequate proof
other than as
to Section 402(a), we will not impose any penalties with
respect thereto.
A penalty in the amount of $10,000
is assessed against Edward
Vander Molen and Everett Vander Molen, d/b/a Elgin Landfill Company and
penalty in the amount of
$10,000
is assessed against Tn-County Landfill
Company for violations
of Sections
12(a) and 12(d)
of the Act,
as above
set forth.
Respondents Vander Molens and Tn-County will be ordered to
cease and desist the operation of their facilities
so as
to constitute
water pollution or
the threat of water pollution, and to
take all neces-
sary steps to comply with the applicable regulations and statutory provi-
sions with respect to the operation of a refuse disposal site and
facility.
Hearings on this matter commenced on June 23, 1971 and concluded
on February
7,
1973.
The transcript of the hearing consists of 2,652
pages; approximately 200 exhibits were introduced into the record by
all parties.
The facts and issues of the case,
however, are not as
complicated as the size of therecord or the time involved in the hearings,
would suggest.
Complainant’s Exhibits 1 and 2 set forth the location of the land-
fill sites and contiguous areas in graphical fashion.
Complainant’s
Exhibit 1
is a zoning map of Kane County, on which the location of the
various sites involved have been placed;
Exhibit 2
is
a Northeastern Illi-
nois Planning Commission air photo map depicting the locations
of the
various sites involved,
the proximity of the Village of South Elgin, the
Fox River,
the wells used for South Elgin’s water supply and the location
of various experimental and testing wells
that were involved in this
proceeding.
Throughout the proceeding,
the property owned and operated by the
Elgin Landfill Company has been referred to as Site A and the property
owned and operated by Tn—County Landfill as Site
B.
Site A, con-
taining approximately
20 acres,
is north of and contiguous with Site
B, containing
46 acres.
Immediately to the west of both Sites A and
Sites B and separated by the Chicago, Aurora and Elgin Railroad
right-of-way
is a tract referred to throughout as Site C.
Site C
contains two bodies of water designated Ponds
II and III and a
stream, which
the complainants contend have been polluted both as
to underground and surface waters located thereon as a consequence
—4—
7
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486
of Respondent’s operations on Sites A and B.
The principal com-
plaint, however, relates not so much to the pollution of the waters
found on Site C but rather to the future pollutional impact that
operations of Sites A and B may cause.
This,
essentially,
is the
concern that continuation of pollution of the upper aquifer will
ultimately cause pollution of the Fox River to the West, but of far
greater concern,
is the fear that the continued pollution of the
ground and surface waters will,
in time,
if unabated, reach the
lower aquifer, which is the source of South Elgin’s water supply
and provides the water obtained from wells #2 and #3 used by the City.
An orderly disposition of this proceeding requires first,
an
analysis of the character and operation of the landfills owned and
operated by Respondents, Elgin Landfill Company and Tn-County
Landfill Company.
Next, consideration must be given to the nature
of the water table and aquifiers involved
in the proceeding, together
with an analysis of the movement and character of the leachate
present.
Next, consideration must be given to the evidence of
pollution,
if any, both actual and threatened, with respect to
Parcel C, the streams and pools involved,
the upper and lower
aquifiers, Well #3, being the source of
S. Elgin’s water supply and
the Fox River.
Lastly, analysis must be made of the various tests
employed by the parties to ascertain all of the foregoing matters,
namely, the background concentrations of water in its natural condi-
tion,
the intensity and movement of leachate and the pollution,
if
any, resulting therefrom.
Thomas J. Rolando, Village President of South Elgin, testified
(R. 177 and following),
particularly with respect to Complainant’s
Exhibit
1, which delineated the various sites involved in this pro-
ceeding.
He observed a dotted blue line on Site
C, which until
May of 1970, represented a lake varying in depth from 8
to
15 feet.
The area around the lake was in the nature of a wildlife refuge.
In May of 1970,
a dam containing the water broke,
causing the lake
to recede several feet and ultimately, became a small pond.
This
pond was connected by a narrow stream to another shallow body of
water.
The pond became brownish—orange and developed a thick scum
beneath it.
Where previously fish had lived in the lake,
no living
organisms could be found in the pond.
The black scum
on the bottom
of the pond had a sewage odor.
Mr. Rolando next testified to his observations with respect to
the operations of the two landfill sites.
The incinerator ash pile
was designated on Sites A and B on Exhibit 1.
The ash was piled
fourteen feet above the railroad right-Of—way and was anproximately
100 feet in length and 30 feet in width and was located on both the
mi-County and Elgin Landfill sites.
The pile was first observed
on August 10, 1970 and at the date of the witness’s testimony, had
been removed from the Tn-County site but remained on the Elgin
site.
A prairie path located along the site of the Chicago-Aurora
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7
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487
Railroad
had
been
covered
with
trees,
which
trees
along
the
west
edge
of
the
Elgin
Landfill
site
appeared
to
have
died.
The
witness
next testified to the source of South Elgin’s water supply, describing
Well
#3 which is located 3/4ths of a mile from the northwesterly
edge of the Elgin landfill site and is 113 feet deep.
Complainant’s
Exhibits
9 through
14 were introduced depicting the condition of
both landfill sites, which pictures, taken in 1971, showed open
burning,
exposed garbage, uncovered auto bodies and exposed standing
water.
Exhibit 15 depicts brownish—orange water in a ravine imme-
diately west of
the incinerator ash pile and the railroad right—of-
way in Site D8.
Exhibits 16 and 17 depict the condition of the brown
lake identified as Pond III on Site C.
Exhibit 18 depicts Pond III
and the stream connecting
it with Pond II,
all on Site C.
Exhibit
19
depicts the present ponds
II and III.
The water leaving the ponds
on Site C flows west to the Fox River, approximately one mile away.
Mr.
Rolando testified further to the character of the incinerator ash
pile observed on both sites, referring to Exhibit
8,
showing a portion
of
the
pile having been excavated.
Everett Vander Molen
(R.
338 and following)
testified with
respect to the operation of
the Elgin landfill site.
Since 1968,
the site has been used exclusively for the deposit of incinerator ash.
This witness testified
to his correspondence with the Environmental
Protection Agency in July of 1971.
He had been advised that it
would be necessary to construct a berm in order to obtain an Agency
permit.
A letter from the Director of the Environmental Protection
Agency
to the Vander Molens dated December 7,
1970
(Complainant’s
Exhibit
25) states,
in part:
“Leachate from your site
is flowing into nearby
ponds and other waterways.
Sample results from
previous inspections show that this leachate is
grossly polluted;
this water must be treated before
allowing it to flow from your property.”
The witness testified that construction of
a berm was not possible
because garbage would have to be excavated around all four
sides
of his property.
When excavation was made to secure fill, water
was observed.
No berm approved by the Environmental Protection
Agency has been constructed to date.
The Vander Molens have been
involved in the operation of the site since 1963.
Jack Termaat, President of the Tn—County Landfill Company,
commented on the company’s operation on Site
B.
In July of 1971,
he also received an Environmental Protection Agency letter directing
that
a permit from the Agency was necessary,
also indicating the
necessity for the installation
of a berm as a consequence of possible
leaching
(Complainant’s Exhibit 26).
Work on the berm commenced but
was not completed.
Subsequently, notices of violation were received
with respect to blowing litter,
inadequate fencing and absence of
cover.
Open burning likewise occurred allegedly as a consequence of
the
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7
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488
deposit of a hot load.
The witness testified
(R.
464)
that
plans submitted to correct the present leachate situation have
not been approved by the Agency.
William N.
Palmquist,
a geologist employed by the Agency, testi-
fied with respect to his observations as to the leachate condition
of
the two landfill sites
(R.
501 and following).
From soil borings
and test wells,
he determined that the underground strata consists
of an upper layer of sand,
silt and gravel, an underlayment of clay,
varying in thickness,
under which
is
a thicker sand and gravel strata
and below that, bedrock, establishing two basic aquifiers.
The
direction of flow in both aquifers
is westerly and southwesterly
toward the Fox River.
As
a result of the breaking of the dam,
the
velocity of movement in the upper aquifer has increased flow into
the ponds on Site
C.
Monitoring wells had been established on and
in the vicinity of Sites A and B.
The witness had obtained samples
from the monitoring wells and from the ponds on Site C during June,
October and November of 1971.
On the basis of these samples,
the
witness ascertained what was the natural background level
for suspended
solids and other contaminants
in the natural ground waters,
and
compared these with a leachate sample collected on a small pond in
the center of Site A.
The results of the samples disclosed two types
of wells whose samples contain different characteristics of effluent.
Wells
2,
3 and 4 are located on Site
B, generally south of the incin-
erator ash pile and disclosed low dissolved solid readings, from
which
the witness concluded that the background concentrations would
be in a range of from 400
to
600, whereas samples taken at Wells
1,
5 and 6 located westerly and southerly of the ash pile disclosed
extremely high concentrations of dissolved solids, approximating
ten times that noted in the former tests.
Concentrations of
calcium, sodium, potassium and chloride were also noted in the leachate
sample taken from the pond on Site B, which corresponded in its com-
position to samples
taken from Wells ##l,
5 and 6.
This witness
concluded that on the basis of the sampling,
leachate from the two
landfills have moved into Wells,
1,
5 and
6,
into Pond III and
the pond west of the ash pile designated as D8
(Ex.
34 through 46).
In his opinion, the leachate emanated from both the Elgin and Tn-
County landfills but primarily from the Elgin landfill.
It was also
his belief that Pond
II west of Pond III would be further contaminated
by the flow from Pond III and that contamination would continue to flow
in a westerly direction to a stream which ultimately discharges
into
the Fox River.
Mr. Palmquist testified that,
in his opinion,
if the
leachate condition continued unabated,
it would ultimately enter the
cone of depression of Well #3, which serve as the source of water for
the Village of South Elgin.
Water samples taken from Pond D8 and
the
brown
orange
pond El
indicated
that
the
water
and
the
ultimate
pollutional impact was travelling in the sub-surface sand and gravel
in a westerly direction from the landfill sites.
Exhibit 25 above
referred to was introduced into the record, being a letter from the
Environmental Protection Agency stating “leachate from your site
is flowing into nearby ponds and other waterways.. .leachate
is grossly
—7—
7
—
489
polluted.
This water must be treated before allowing it to flow
from your property.”
Respondent’s Exhibits
2 through
9 were test
results made by the Agency in September of 1970, which was the
basis for the foregoing letter dated December
7,
1970.
George Hughes
CR.
672 and following)
a geologist employed by the
Illinois State Geological Survey testified on the basis of his
studies of soil borings made on Sites A, B and C, from which he con-
cluded that there were at least two aquifers underneath the three
sites.
The Village of South Elgin draws its water from the sand and
gravel aquifer immediately above the bedrock, which is an aquifer
below the sunficial sand and gravel aquifer located in the top strata.
The water level on all three sites appears to be within
20 feet of
the surface and occasionally closer.
The source of leachate from the
landfills
is rain water moving from the top of the landfill.
Another
source would be ground water moving in the sides of the landfill.
He estimated that with
12 inches of rainfall during a year,
13,200,000
gallons of water would be leached from a 40-acre site.
In his opinion,
nothing would prevent the leaching of water laterally out of Sites A
and B through the surficial sand.
While a layer of silty clay with
relatively low permeability may separate the two aquifers,
he cannot
state with certainty that a hydrological barrier exists between the
two aquifers.
A break in the clay might exist and the clay itself
is not absolutely impervious.
The cone of depression,
a term
used frequently throughout the hearing,
is descriptive of the area
from which South Elgin Well #3 draws
its water.
If,
in fact,
the
layer sq~~atingthe upper and lower aquifers is not impervious,
it
is
a
fair assumption
that
pollutants
present
in
the upper aquifer could
reach
the lower aquifer and constitute a pollution source to South
Elgin’s drinking water supply furnished by Well #3.
This witness
testified to various methods of control of leachate including contain-
ment,
blocking, reversing direction of flow, collection and treatment.
The success of any one of
these methods would be dependent on many
variables,
including the characteristics of the soil,
the zone of
saturation and the character of the materials creating the leachate.
In his judgement,
no barriers exist at the present time,
to prevent
the leachate from moving laterally from Sites A and B.
George Schafften,
(R.
767), Edward Ross
(R.
778)
and Arthur H.
Ross
(R.
805)
testified to the change in the character of the stream
and ponds on Site C, subsequent to the breaking of the dam which
drained off the preexisting lake.
Each owns land on which a well
exists immediately west of Site
C.
George Schaffter testified
that when the dam broke in May,
1970,
the stream became clay-colored,
foam formed on the ice after freezing,
frogs were killed and in the
spring,
sludge accumulated possessing a sewage-like odor which lasted
through the summer.
This witness made
a significant observation
that when the South Elgin Well
#3 was filled in in April of 1963,
all
of the water drained from his well
CR.
770)
.
The interrelation
between the ponds and streams on Site C,
the stream on Mr. Schaffter’s
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7
—
490
property, his well and the South Elgin well became evidence and
the
interrelation
between
the
upper
and
lower
aquifer
transcend
the
realm
of
speculation.
Edward
Ross
owns
a
90—foot
well
about
approximately
one-half
mile
east
of
Sites
A
and
B.
In
recent
months
he
has
noticed
odor
from his well water which did not previously exist.
When the dam
broke,
he noticed a septic tank odor from the stream running through
his property.
Later, the creek bottom turned black and fish no longer
were
present.
Edward G.
Haas testified with respect
to
the landfill operations
being conducted on Sites A and B, and also confirmed the sequence
of
events
following the breaking of
the
dam
on
Site C and the dis-
~oloration and odors emanating from Pond
III.
He
has
observed
excavations on Site A for cover material used
ai the ash pile.
These
excavations have left open large holes exposing garbage that had been
previously dumped.
The covering of
the ash pile has been on a daily
basis only for the last six months.
In 1970,
he observed the dumping
of liquids on the Tn—County landfill site.
Tie observed dumping by
a sludge removal service of what appeared to he motor oil.
Also ob-
served was the dumping of an orange liquid from
a chemical company
truck.
For approximately twelve months after June,
1970,
this witness
sa~no evidence
of
daily cover
on
either
Sites
A
or
B.
The
most
significant
evidence
with
respect
to
the
movement
and
character
of
the
leachate
westward
from
the
landfill
sites
to
Site
C
and
beyond,
is
the
testimony
and
exhibits
of
Drs.
Lawrence
A.
DuBose
and
Wilbur
Simon.
Dr. Lawrence A.
Du3ose,
(H,
491)
President of
resting Service
Corporation, conducted
a series of
tests based
on
the
measurements
made
at
various
testing
wells
and
locations
on
and
west
of
the
landfill
sites
involved.
The
results
of
these
tests
are
contained
in
Complain-
ant’s
Exhibit
32 and are entered
on
Complainant’s Exhibit
1.
His
affidavit sets forth that he has conducted tests with respect to both
landfill properties
with
a view of determining what,
if any, pollution
or leachate has been caused
by and
is
escaping
from the landfill sites.
Tests were
made on May
28,
June
14,
June
28, October
7 and November 23,
1971.
Samples were taken at
six
monitoring wells previously referred
to,
Wells
2,
3
and
4
being
located
on
Site
B
and
Wells
1,
5 and
6
located
west
of
Sites
A
and
B,
all
of
which wells
are
likewise
de-
picted
on
Comp1ainant~s
Exhibit
1.
The principal parameter tested
were
with
respect
to
total
dissolved
solids.
The
results
of
these
tests
are
noted
as
follows:
7
—
491
Wells
Date of Test
Total Dissolved
(all 1971)
Solids
(mg/l)
2
May 4
640
May
11
358
August
20
608
September 24
304
3
June 11
892
September
24
380
4
May
4
468
May
11
404
June
11
540
September
24
336
1
May
4
6590
May
11
4590
June
11
5340
August
20
6780
August 30
6180
September
24
5880
October
18
4700
5
August
12
4324
August
30
4665
September
24
7128
October
18
5300
6
August
20
4716
August
30
4000
September
24
4020
October
18
3900
Tests were also taken at surface locations designated
as D7,
D8,
D9 and D10.
D7, being bOated north of the landfill sites, D8,
west on the periphery of the landfill sites, D9 on Site C south of
the
brown orange pond, and DlO in the stream north of Pond II.
All tests
were made on May 27 and reflect the following total dissolved solids
readings:
D7
—
402
D8
—
2260
D9
—
2000
010—
536
The
tests
made
at
both
of
the
wells
and
the
surface
water
test
sites support the contentions that the heavy TDS readings as a consequence
of the leachate from the landfill sites.
Wells
2,
3 and 4, while
located on Site B,
are south of the incinerator ash pile, whereas
wells
1,
5
and
6
are
west
of
the
incinerator
ash
pile
and
in
the
demonstrated
path
of
flow
of
leachate
from
the
landfill
sites.
Complainant’s
Exhibit
1
depicts
that
the
incinerator
ash
pile
is
on
both
the
Elgin
and
Tr.i-County
landfill
sites.
D7,
north
and
east
of
the
landfill
site,
reflects
an
extremely
low
dissolved solid reading.
—10—
7
—
492
Site Dl0, north of Pond II likewise discloses
a natural level of
dissolved
solids,
whereas
D—8,
immediately
west
of
the
ash
pile
and
D9,
contiguous
with
the
brown
Pond
III,
disclose
high
dissolved
solid
readings.
As
a
result
of
the
tests
conducted
by
Dr.
DuBose,
the
following
conclusions
are
stated
by
him:
“1.
That leachate and pollution is moving by ground water
from its source,
Elgin Landfill Company site, westerly
and southerly from said Elgin Landfill Company site,
into a stream shown on said map Complainant’s
Exhibit
1
west of said Elgin Landfill Company site,
and is polluting
said stream by way of said pond shown on said map exhibit
in brown, and which results in pollution being caused
downstream.
2.
That such pollution and leachate has its source on
Elgin Landfill Company site and moves westward as ground
water and much of it collects in said pond on the sur-
face of same.
3.
That if the operation
of
said
Elgin
Landfill
Company
site continues as presently operated,
in some years
it
is possible that the leachate from same will pollute the
South Elgin Public water supply.
4.
If an adequate barrier
is not placed
to
contain the
leachate from both of said landfills,
it
is possible that
leachate from both of said landfills could pollute said
South Elgin water supply.”
It
should
be
noted
that
recently
adopted
Regulations
of
the
Pollution
Control
Board
limit
dissolved
solids
in
public
and
food-
processing water
supply
to
500
mg/b
(Rule
204)
and
for
general
use
waters to 1,000 mg/b.
Drinking water standards are set forth in
Complainant’s Exhibit 112 set
a 500 total dissolved solids limit
as
a health standard (Page
7).
Wilbur Simon, an analytical chemist who testified on behalf of
the Environmental Protection Agency
(R.
1075)
took water samples
from various locations involved in the proceeding.
Exhibit 120 is
a sample taken on September 23,
1971 from the orange pond located on
Site C.
The samples smelled like sewage.
Exhibit 121 was a sample
taken on September
23,
1971 from Site B.
Exhibit 122,
taken from
the orange pond,
had a smell of acid.
Exhibit 124, being a sample
from the creek flowing into Pond II, was clear and did not smell.
Exhibit 125 is
a sample of the incinerator ash taken from the Elgin
landfill.
Exhibit 126
is the result of Simon’s test of placing the
ash on a filter and beaching the solids with distilled water.
From
this,
the witness concluded that the leachate was originating pri-
marily from the Tn-County landfill because of the iron content in the
—11-
7
—
493
samples.
A sample from the Tn-County Landfill reflected a
total dissolved solid reading of 6786.
Exhibit 126, being leachate
from
the Elgin landfill disclosed total dissolved solids of 1808.
This witness, both on the stand
and
in
the
affidavit, concluded that
both landfills are operated on land unsuitable for landfill sites,
since,
in his judgement,
they were causing pollution of
the
South
Elgin
well
and
discharging
leachate
into
underground
water.
He stated
that
there
was
oil
and
sewage
on
the
pond
on
Site
C
which,
in
his
opinion,
came
from
the
Tn-County
landfill.
BOD
samples
taken
at
the
Tn-County
landfill
were
comparable
to
BOD
measurements
made
at
the
orange
pond.
In
his
judgernent,
the
Tn-County
Landfill
is
a
major
source
of
acids,
iron,
mercury
and
ammonia,
which
have
caused
a change in the pH
of
the
South
Elgin
well
water.
Two
written
state-
ments by Dr. Simon were received into evidence, the first being
an Affidavit dated December
6, 1971
(Exhibit 113) and the second being
a report entitled “The Contamination of the South Elgin Water Supply
by Sanitary Landfill Omerations” dated December 27,
1971
(Ex.
115).
Tests made on South Elgin Well
#3
disclose
an
increase
of
total
dissolved solids from 396 in
1962
to
636
in
November,
1971,
which,
~n
the
opinion of the witness, was caused by the proximity of the
landfills
and
resulting
leachate.
Three
specific
testing
procedures
are tabulated in Exhibit 1l3~
the change in dissolved solids with
respect to samples from South Elgin Well #3;
the changes in surface
waters between the landfills and Well #3, and the chemical content
of
surface
ponds
on
landfill
sites
east
of
Well
#3.
High
total
dissolved
solids
readings
in
the
ponds
on
Site
C
and
low
TDS
readings
from well water taken several hundred feet from the Fox River served
by the same aquifer as Well #3 are reflected.
The study of chemical
content of surface ponds on
the
landfill
sites
indicates
that
the
landfill sites are contributing
to the pollution of the underground
water.
Contaminants
from the Elgin landfill in the form of soluable
inorganic salts are
contained in the
Tn-County
landfill,
together
with
organic
liquids.
The conclusions of Mr. Simon based on the
foregoing
tests
,all
tabulated
in
Complainant’s
Exhibit
113,
are
as follows:
“1.
Both landfills are discharging leachate into the under-
ground water.
2.
Both landfills are operating on land unsuitable for
landfill sites.
3.
The fast flow of the underground water is toward the
South Elgin Well
#3, only because the natural flow is
diverted by the South Elgin well.
4.
Chemical changes have occurred in surface waters 500
feet
west
of
the
landfills.
5.
Changes have occurred in the acidity, dissolved solid
content and mercury concentration of South Elgin Well
#3.
—12—
7
—
494
6.
Landfill operations should be terminated as soon as
possible to protect the people and animals from water
borne diseases.
7.
These
conclusions
are
based
in
part
on
fluctuations
in
the
chemical
content
of
the
Village
of
South
Elgin
Well
#3 water.”
The summary of tests made by
Mr.
Simon on September 24,
November
8
and
November
22,
1971
and
reflected
in
his
affidavit
identified
as
Exhibit 113,
discloses high dissolved solid counts from measuring
stations
in the vicinity of the ponds designated II and III west
of the landfill sites, but relatively low readings from waters north
and tributary to these ponds.
Likewise, dissolved solid readings
taken
west of Site C reflect a diminishing dissolved solid count as
the
readings
progress
westerly.
These
tests
are
entered
on
both
Complainant’s
Exhibits
1
and
2.
The statement submitted as Exhibit 115 entitled
“The Contamina-
tion of the South Elgin Water Supply by Sanitary Landfill Operations”
analyzes both inorganic and biodegradable chemicals originating from
four sources
--
septic tanks,
sanitary landfills,
the Fox River and
the Kenyon farm.
The report traces the various pollution indicators
from the Tn-County and Elgin landfills to waters east of the land-
fills, private wells southwest of the landfills,
ponds and a creek
west of the landfills to the Fox River and to the South Elgin Well
#3.
The conclusion of the report is that organic chemicals arc the major
pollutants of all waters studied,
that incinerator ash buried on
both landfills
is the major source of soluable inorganic salts,
that Tn-County Landfill is the major source of organic chemicals
present in incinerator ash,
that Elgin Landfill is the major source
of inorganic chemicals present in incinerator ash, that Tn-County
Landfill is the major source of strong acids,
iron, mercury and
ammonia and that the South Elgin landfill is polluted
by
organic
chemicals and iron.
The Fox River does not pollute the aquifer from
which South Elgin draws its water and that the creek which flows through
the properties southwest of the landfill has been polluted by Tn-County
Landfill.
The report states that Elgin Well
#3 has been receiving
biodegradable and chemically oxidized organic wastes, which have
been introduced into the South Elgin aquifier.
The major source of
organic wastes
in the
landfills
is
the
refuse
buried
in
the Elgin
landfill and the stable cbeanings,
septic tank sludge, oil sludge,
organic solvents and garbage buried at the Tn-County landfill,
together
with
run—off
from
cow
manure
fertilizer.
Material
buried
in the Tn-County landfill
is alleged to be responsible for the
ammonia content in
the
escaping
leachate
and
the
ammonia
found
in
the
orange
pond.
BOD content of water was used
to trace the flow of
leachate from Tn-County landfill, which left the site in the vicinity
—13—
7
—
495
of Test Well #1 and enters the south end of the orange pond.
After
emerging from
the
ground,
the biodegradable chemicals diminish rapid-
ly before entering the Fox River.
Table #2
in the report indicates
that leachate from Tn—County Landfill contaminates water
in every
direction and that this water enters the aquifer of all public and pri-
vate wells
in the vicinity.
Private wells drawing from the same
aquifier as the Elgiri well were tested for dissolved solids.
Averaged
dissolved solid testing by Dr. Simon of the test wells used by Dr.
DuBose produced essentially similar corresponding measurements with
respect to all wells
involved,
Wells
#1,
5 and 6, reflecting high
total dissolved solids measurements and Wells
#2,
3 and 4 correspond-
ingly low.
In
addition,
analysis
of
the
orange
pond
was made reflecting
a
BOD
of
630
on
September
23,
1970,
which
was
the
same
value as the
black
pond
at
the
southeastern
edge
of
the
Tn-County
landfill.
Spectographic analysis
of the orange solids show constituents
of
incinerator ash.
On
the
basis
of
the
testing
and
examination
per-
formed
by this witness, the following conclusions are stated:
“1.
South Elgin Well No.
3
is contaminated by leachate
from incinerator ash, by solutions of organic and
inorganic
chemicals,
and
by
products
of
biodegradation.
2.
The
pollutants
originate
at
the
Tn-County
Landfill
and the Elgin Landfill.
Leachate escapes
from
both
landfills and enters the aquifer from which South
Elgin obtains
its drinking water.
3.
Dead
trees
to
the
west
and
northwest and living trees
to
the
north
of
Elgin
Landfill
indicate
that
leachate
is
escaping
laterally
westward
from
Elgin
Landfill.
4.
Elgin Landfill Company is responsible for the leachate
from incinerator ash.
(some of its ash is buried on
other properties)
5.
Tn-County Landfill Company
is responsible for the
organic
chemicals,
ammonium
iron,
mercury
and
iron
in
the
South
Elgin
Well
No.
3.
6.
Kenyon’s
creek
is
being
polluted
by
the
landfills.
7.
The
Fox
River
does
not
pollute
the
South
Elgin
well.
8.
An orange pond about
800
feet
west
of
the
landfills
is being polluted
by
leachate
escaping
from
the
Tn-County
landfill.
9.
No
further
landfill
operations
should
be
conducted
on
the
present
sites
or
on
the
proposed
sites
east
of
the
Village
of
South Elgin.
—14—
7
—
496
10.
A
scientific
study
should
bemade
of
incineration
techniques which could lead to the production of
a
completely
insoluble
ash.
11.
On
the
basis
of
state
and federal standards which
limit BOD entering rivers and sewage treatment
plants
(a)
the water from beneath the landfills
cannot
be
pumped
into
the
Fox
River
Without
pre-
treatment.
(b)
the
water
from
beneath
the
landfills
cannot
be
pumped
to
a
sewage
plant
without
pre-
treatment.”
In further substantiation of the leachate movement from the
landfill sites westwardly was the dye test conducted by Dr. DuBose,
noted
in
Complainant’s
Exhibit
133.
On
August
19,
1971,
Testing
Service Corporation,
under the direction of Dr. DuBose, introduced
a fluorescent dye at two locations at the west end of the Elgin
Landfill site.
After introduction of the dye, water samples were
taken from monitoring wells
1,
5 and
6 on August 30, August 30,
September
2, September 24, October
18 and December 17, 1971
and on April
10,
1972.
The samples were viewed under ultra-violet
light and a green fluorescence noted in some samples.
However,
no samples taken on or before December 19 indicated the presence
of the dye.
On April
10,
1972,
it was noted that a number of areas
west
of
Site
A
contained
ponded
water
in
which
leaves,
stones
and
dead branches had been stained a light green color.
Samples
of
such
water
and
some
of
the
leaves,
were
tested,
which
lead
to
the conclusion that the samples contained characteristics comparable
to that found in the fluorescent dye.
The ponds where the green
was noted were approximately 150 feet west of Wells #5 and 6.
Smaller ponds to the north do not contain the green material.
Dr. DuBose concludes as follows:
“Our
opinion
is
that
the
dye
has
moved
from
the
Elgin
Landfill westerly,
in the approximate general direction that we
had
previously
predicted.
Rainfall
after
January
1,
1972,
was
sufficient to develop the gradient necessary to move the dye.
In the interim between December 17,
1971 and April 10,
1972,
the
dye
actually
moved
west
past
our
monitoring
wells
and
surfaced
as
seeps
at
a
number
of
locations
we
have
referred
to as
‘small ponds’,
“We
believe
that
the
dye tests confirm our previously made
statement that leachate has been leaving the Elgin Landfill site
and
moving
west.
Dr.
Krawetz’s
report
with
respect
to
said
five
April
10,
1972
samples
supplements
this
report
and
is
attached hereto.”
—15—
7
—
497
The affidavit of Ed O’Brien was received in evidence as Com-
plainant’s
Exhibit
116.
On the basis of his experience of 41 years
as a well digger, and his familiary with the terrain ~nd hydrological
aspects
of
the immediate area,
he arrived at the following conclusions:
“1.
That the zone of influence or cone of depression of
Well
No.
3
of
the
Village
of
South
Elgin
extends
as
fan
as,
or beyond,
the red dotted line running northeasterly
and southwesterly, northwest of the existing landfill
sites
on
said
Complainant’s
Exhibit
2.
2.
That
because
of
the
hydraulic
connection
and
the
area
of
the
cone
of
depression
of
said
Well
No.
3,
any
ground
water,
pollution
or
contamination
escaping
from
said
landfill
sites,
would
be
drawn
to
and
would
threaten
Pollution
of
the
South
Elgin
public
water
supply,
as
presently
constituted
in
said
Well
No.
3.
3.
That
any
new
well
which
might
have
to
be
sunk
for
the
future
public
water
supply
of
the
Village
of
South
Elgin
would
have
to
be
located,
to reach the maximum water
supply, south and east of existing Well
#3 and, there-
fore,
in closer proximity
to the existing landfill sites.
4.
That while the existing landfill operations may not
yet
have
contaminated
any
wells
in
the
South
Elgin
area,
I
consider
very
great
the
threat
that
this
will
happen
in the near future.”
We
believe
the
complainants
have
established
their
burden
of
proof.
Witnesses
of
Respondents
do
not
refute
the
foregoing
conclusions.
Harold
C.
Hall, representing Tn-County Landfill Company submitted
a written statement and also testified as an adverse witness.
In
his written statement #1, he stated that the major source of contamina-
tion of the upper aquifier is the leachate generated by the sanitary
landfill
(R.
5)
and that the movei~entof ground water
is
in a westerly
or southwesterly direction,
In his view,
the historical background
of water quality for total dissolved solids
(TDS)
is between 400 and
450
ppm.
He believed that all tests conducted by the parties were
valid and that the evidence demonstrated that the leachate had moved
from the landfill to Pond
#3 and that there
is likelihood
that some
of the dissolved minerals existing on Site C was derived from the
landfill
(H.
1700-1702).
The surface ponds and streams on Site C
are discharge areas
of the contents of the upper aquifier
(R.
1708)
and that
the
upper aquifier
is contaminated and polluted by both
Sites A and B
(R.
1708—1712—1781)
.
It was his view, however,
that
since all of
the pollution took place on Site C,
the hazard of water
pollution did not exist.
On. James
E. Hackert also testified on behalf of Tn-County
and agreed with the conclusions of
Mr.
Hall.
He observed the
—16—
7
—
498
and
this
is
a condition that we cannot allow
to continue where
the health and well-being of the community are involved.
The evidence establishes that it,
in fact, drinking water becomes
characterized by the TDS counts that ~are present in the portions
of the upper aquifer, this could have
a serious and disastrous effect
on the citizens of South Elgin.
We will not tolerate this danger,
notwithstanding
the
fact
that
the
time
may
be
distant
when
such
pollution
would,
in
fact,
take
place.
We
will
not
direct
revocation
of
such
permits
as
Respondents
may have heretofore received from
the
Department
of
Public
Health
but
we will
direct
that
immediate
and sufficient steps be taken to abate the pollutional discharge
from Respondent’s properties.
We are not satisfied that merely because
Site C may be in private ownership that Respondents are free to pollute
it indiscriminately.
The Environmental Protection Act provides no
such
exemption.
Nor do we adopt Respondent’s arguments that the
movement westward will produce an attenuation of pollutional discharge
that will remove all danger.
It
is abundantly clear that the ponds
and
streams
on
Site
C
are
the
waters
of
the
State
and
they
have
been
polluted
from
the
leachate
from
Sites
A
and
B.
It
is
further
abundantly
clear
that
a
continuation
of
this
condition
unabated
will
in
all
likelihood
create
the
pollution
of
the
Fox
River
into
which
the
streams
flow
and
the
even
more
dangerous
possibility
of
pollution
of
the lower aquifer and the drinking water of the Village
of
South
Elgin, which the evidence indicates has already begun.
We
will
order
Respondents
to
immediatey
cease
and
desist
all
wtivities
creating
a
condition
of
water
pollution
or
the
threat
of water pollution and to take immediate steps
to abate
the
leachate
discharge from their sites.
The proposals made to the Board
in this
respect
have
been
varied
and
include
the possibility of containment,
the
removal
of
refuse
and
treatment
of
leachate.
These
are
matters
which,
on
the
state
of
the
record,
we
are
not
in
a
position
to
direct
in
any
definitive
manner,
but
will
mandate
the
Agency
to
require
such
steps as are necessary to achieve the ultimate result of pollution
abatement,
both
present
and
threatened.
This
may
include
the
construc-
tion
of
berms
and
such
other
and
further
steps
as
are
needed
to
ter-
minate the pollutional discharge and achieve abatement.
Penalty
in the amount of $10,000
is assessed against Respondents, Edward
and
Everett
Vander
Molen,
d/b/a
Elgin
Landfill
Company
and
Tni-County
Landfill Company, severally,
for permitting
the condition of water
pollution and threat of water pollution found herein.
All other
Respondents are discharged.
IT IS THE ORDER of
the Pollution Control Board:
1.
Respondents,
Edward and Everett Vander Helen, d/b/a Elgin
Landfill Company and Tn-County Landfill Company shall
cease and desist the causing of water pollution and the
threat of water pollution on
their respective sites.
—18—
7
—
499
minerological changes that had occurred on Sites C, but could
not
differentiate
between
Site
A
and
site B as contributors (R.2017~
18),
that
an
undesirable
chang~~
has
taken
place
in
the
water
qualfly
on
Site
C
and
that
the
leachate
nw~ves in
a
westerly
direction
from
Sites
A
and
B.
This
view
is
supnorteo
by
Jo~.ph
S.
Rempe,
who
testified
on
behalf
of
Ebgin
Land
f~jl±
~L
2400’~
.
He
believed
that
it
was
possible
that the buachate han
re~(’)-~’i
the
btown
pond
(Pond
III)
and
that
the
creek running throug
5r~
‘
and the two ponds were waters of the State
The
foregoina
e\;idenc
~ubsLantiates
the
position
of
the
complair—
ants
and
the
En~iromre:,LiJ
Ic-otection
Agency;
that
the
landfill
operations
of
RespolidLId
‘~ve
ce~usedwater
pollution
and
constitute
a threat of
water
pnJ.ltic’.
The
measurements
alone,
as
we
have
held
in
the
past., are nob
in
themselves
sufficient
to
establish
a
violation
of
Section
12(a)
of
the Environmental Protection Act.
Water r)ollubion as defined in the Environmental Protection Act
is
“such
alteration
of
~.hephysical, thermal, chemical, biological
or
radio~-~ctiveproperties
of
any
waters
of
the
State,
or
such
dis-
charge
of
any
contaminant
into
any
waters
of
the
State,
as will or
is
likely
to
create
a
nuisance
or
render
such
waters
harmful
or
detri-
mental
or
injurious
to
nublic
health,
safety
or
welfare,
or
to
domestic,
commercial,
industrial, agricultural,
recreational
or
other
legitimate
uses,
or
to
livestock,
wild
animals,
birds,
fish
or
other
aquatic
life.”
The evidence clearly establishes that this section has been
violated.
There
is
no
auestion
that
the
physical
and
biological
characteristics of the waters pf the State being Ponds
II and III
and the stream flowing from them, have been altered by the pollutional
discharge and leachate from Sites A and B.
There
is
also
no
question,
as
the record clearly supports,
that the leachate
and
pollutional
discharge has nullified the same waters for any recreational purpose,
have
killed
fish,have
ruined
vegetation
and
have
generated
odorous
and
unsightly characteristics detrimental to the public health and
injurious
to fish and aquatic
life and likely to create a nuisance.
More significant,
however,
is the threat of water pollution inherent
in the present operations.
The evidence does not sustain that the
bower aquifer
is polluted at the present time.
However, the threat of
such nollution
is an area of major concern and must be abated.
There
was considerable testimony and dispute as to whether the upper and lower
aquifeis were separated by an impervious clay layer.
Testimony both
pro and con in this respect was particularly speculative.
However,
there is no question that the lower aquifer runs beneath Sites
A,
13 and C and provides
the
water supply for the City of South Elgin.
There is also no question that portions of the upper aquifier,
the
ponds
on Site C and the stream connecting and running therefrom to
the Fox River have been polluted.
We must,
therefore, conclude that
a substantial threat of water pollution to the lower aquifer exists as a
consequence of
the pollutional discharges
from Respondents’
properties
—17—
7
—
500
2.
Respondents aforesaid shall take immediate steps
to preclude and prevent and terminate the leachate
and pollutional discharge from their sites.
Within 90
days from the date hereof,
each Respondent shall
submit to the Environmental Protection Agency a program
for abatement to accomplish the objectives herein set
forth and within 180 days from the date hereof,
effectively
implement
said
program
so
that
all
leachate
and
water
pollution from both sites
shall have terminated.
3.
A bond in the amount of $100,000 shall be posted by
the Respondents Vander Molens and a bond in the amount
of $100,000 shall be posted by Thi-County Landfill,
in
forms acceptable to the Environmental Protection Agency
guaranteeing submission of
the pollution abatement programs
as
required
by
this
opinion, which bonds shall each provide
for the forfeiture of
$20,000 for failure of the Respondents,
respectively,
to
effectuate
compliance
with
the
abatement
of
its
pollutional
leachate
discharges
within
180
days
from
the
date
hereof.
Bond
shall
be
mailed
to:
Fiscal
Services Division,
Illinois Environmental Protection
Agency,
2200 Churchill Drive, Springfield,
Illinois 62706.
4.
Penalty
in
the
amount
of
$10,000
is
assessed
against
Edward and Everett Vander Molen, d/b/a Elgin Landfill
Company,
jointly and severally, and penalty in the amount
of
$10,000
is
assessed
against
Tn-County
Landfill
Company
for violations
of Sections
12(a) and 12(d)
of
the Environ-
mental Protection Act in the causing and threatening of
water pollution,
as found in this Opinion.
Penalty payment
by certified check or money order payable to the State of
Illinois shall be made to:
Fiscal Services Division,
Illinois
Environmental
Protection
Agency,
2200
Churchill
Drive,
Springfield,
Illinois 62706.
I, Chnistan Moffett,
Clerk of the Illinois Pollution 4ontrol Board,
certify
that
the
above
Opinion
was
adopted
on
the
/~
~day
of April,
1973, by a vote of
~
to
C.
—19—
7
—
501
S
S